MARIO CARBALLO, PETITIONER V. UNITED STATES OF AMERICA
OSVALDO COELLO, PETITIONER V. UNITED STATES OF AMERICA
No. 90-1252, No. 90-7501
In The Supreme Court Of The United States
October Term, 1990
On Petitions For A Writ Of Certiorari To The United States Court Of
Appeals For The Eleventh Circuit
Brief For The United States In Opposition
TABLE OF CONTENTS
Questions Presented
Opinion below
Jurisdiction
Statement
Argument
Conclusion
OPINION BELOW
The opinion of the court of appeals (90-1252 Pet. App. A1-A58) is
reported at 913 F.2d 861
JURISDICTION
The judgment of the court of appeals was entered on October 2,
1990. A petition for rehearing was denied on December 4, 1990.
90-1252 Pet. App. A59-A60. The petition for a writ of certiorari in
No. 90-1252 was filed on February 4, 1991, and the petition in No.
90-7501 was filed on March 4, 1991. The jurisdiction of this Court is
invoked under 28 U.S.C. 1254(1).
QUESTIONS PRESENTED
1. Whether the court of appeals properly found harmess error in the
admission of evidence regarding a co-defendant's conviction and in a
government witness's disparaging statement about attorneys.
2. Whether the jury's exposure to a book about jury service was
harmless.
3. Whether a trial error may be harmless in a case in which the
jury reaches deadlock and an Allen instruction is given.
STATEMENT
Following a jury trial in the United States District Court for the
Southern District of Florida, petitioners were convicted of conspiracy
to engage in racketeering activities, in violation of 18 U.S.C.
1962(d) and 1963 (Count 1), racketeering, in violation of 18 U.S.C.
1962(c) and 1963 (Count 2), conspiracy to possess 400 kilograms of
cocaine with the intent to distribute it, in violation of 21 U.S.C.
846 (Count 22), and possession of 400 kilograms of cocaine with the
intent to distribute it in violation of 21 U.S.C. 841(a)(1) (Count
23). Petitioner Carballo also was convicted of conspiracy to possess
5,000 pounds of marijuana with intent to distribute it, in violation
of 21 U.S.C. 845 (Count 21). Petitioner Coello also was convicted on
an additional count of conspiracy to possess cocaine with intent to
distribute it (Count 24) and an additional count of possession of
cocaine with intent to distribute it (Count 25). The district court
sentenced Carballo to concurrent terms of 15 years' imprisonment on
each count and Coello to an aggregate term of 35 years' imprisonment.
The court of appeals affirmed. 90-1252 Pet. App. A1-A58.
1. This case was part of the so-called "Miami River Cops"
prosecution. It involved charges against a number of Miami, Florida,
police officers for a variety of offenses centering around large-scale
narcotics violations that the defendants committed in the course of
their official police duties. The first trial, in which petitioner
Carballo was not a defendant, ended in a mistrial. Petitioner and 13
other police officers were subsequently named in a 31-count indictment
charging them with various racketeering, narcotics, civil rights, and
tax offenses. All of the defendants except petitioners pleaded guilty
or were convicted in a separate trial. Gov't C.A. Br. 1-4.
Petitioners' trial focused largely on three drug incidents: the
"Tower Paint incident," the "Tamiami Marine rip-off," and the "Jones
Boat Yard rip-off." Other evidence adduced at the trial related to
plots by the policemen-defendants to murder government witnesses,
bond-jumping by Coello, and large cash expenditures by both
petitioners. Gov't C.A. Br. 5-6.
The Tower Paint incident involved two abortive attempts by
petitioner Carballo and others in early July 1985 to steal
approximately 5,000 pounds of marijuana from a van that was allegedly
coming from the Florida Keys to be unloaded at a Tower Paint store in
Miami. Unbeknownst to Carballo and his co-conspirators, the van they
hoped to ambush had already been seized by legitimate law enforcement
officers in Key Largo. Gov't C.A. Br. 6-7.
In the Tamiami Marine rip-off, which took place on July 12, 1985,
petitioners and others successfully stole approximately 1,000
kilograms of cocaine from a boat tied up at the Tamiami Marine marina
on the Miami River. Coello participated in the raid of the boat
containing the cocaine, helped unload the cocaine, and beat one of the
crewmen of the boat. Carballo stashed some of the cocaine in his
police vehicle, took it to the premises of his carpet installation
business, and later sold ten kilograms of the drug for $220,000.
Gov't C.A. Br. 7-10.
The Jones Boat Yard rip-off occurred on July 28, 1985. Coello and
other officers planned a raid on the boat yard, where they suspected
that cocaine was being unloaded. During the raid, the officers
discovered approximately 400 kilograms of cocaine being loaded into a
van by drug smugglers. Coello and other officers pushed six of the
smugglers into the water, where three of them drowned. Carballo was
not present at the theft, but he subsequently assisted his
co-conspirators in selling 51 of some 400 kilograms of cocaine they
had stolen during the raid on the boat yard. For his part in
disposing of the cocaine, which yielded a net profit of $1.3 million,
Carballo received $116,000 to split with another Miami police officer.
The discovery of the drowned smugglers' bodies led to the
investigation of petitioners and their co-defendants. Gov't C.A. Br.
10-14.
2. a. At petitioners' trial, Detective Alex Alvarez, the
government's case agent, testified as a government witness. On
cross-examination by one of petitioners' co-defendants, Alvarez was
asked if he had been present when Rudolfo Arias, a co-conspirator and
government witness, testified at the trial of co-conspirator Ricardo
Aleman. In particular, Alvarez was asked if he had been present when
Arias admitted that he had lied as a police officer. On redirect
examination, the prosecutor inquired about the Aleman trial. Over a
defense objection, Alvarez testified that Aleman was one of the "River
Cops," and that he had been charged with guarding the cocaine during
the Jones Boat Yard incident. When the prosecutor asked whether
Aleman had been convicted, defense counsel again objected and the
prosecutor withdrew the question. Gov't C.A. Br. 43-44; 90-1252 Pet.
App. A16-A18. Presumably referring to defense counsel's original
questions concerning the Aleman trial, the trial judge noted that
"(t)he question has been interjected in the case." 90-1252 Pet. App.
A17.
Arias subsequently testified as a government witness. On
cross-examination, counsel for one of petitioners' co-defendants
sought to develop Arias' admissions, first made at the Aleman trial,
that as a police officer he had lied to secure the convictions of
guilty arrestees and to "get rid of the scum." Gov't C.A. Br. 45.
Arias said that "(t)he scum is the ones that were committing the
crimes. Now me and your client are the scums because we committed the
crimes." Ibid. The following exchange then took place (id. at 46):
Q. Yesterday you said that it was lawyers who were tricking
juries and lawyers who were helping people to lie and beat cases
and fool the jury, isn't that what you said?
A. Yes, sir.
Q. So are they scum too?
A. The defense attorney has a job to do. He wants to win the
case, regardless if his client is guilty.
Q. Is that your guilty (sic) of a defense attorney?
A. I have been around a lot of defense attorneys, on some
occasion the finest in the nation.
Q. That's their job, to fool the jury?
A. And win the case.
Q. And win the case?
A. Yes, sir. On some occasion they could be an innocent man,
I don't agree. That's not the case in this case. The only
innocent person, and he was just a little mistaken on the
Tamiami, was Aleman.
I told the Government about it. They did something about it.
Aleman was convicted. I told them that Raimundo Betancourt was
the one who did the crime. He pled guilty and he is facing 30
years. Many others have pled guilty.
Coello's counsel requested a mistrial. Four days later, the district
court denied the motion for a mistrial and reinstructed the jury on
thee burden of proof, reasonable doubt, the presumption of innocence,
and the credibility of co-conspirator witnesses. With respect to
Aria's statement that "Aleman was convicted," the court told the jury
that "the fact that any other person has been convicted is not proof
in and of itself of the guilt of any other person in this case."
Defense counsel did not ask the court to instruct the jury to
disregard Arias's testimony about Aleman's conviction. Gov't C.A. Br.
46-47.
b. During his cross-examination, Arias testified that in connection
with the first "River Cops" trial, in which he had been a defendant
and which had ended in a mistrial, he and his attorney "prepared our
defense to make a fool of the jury, to confuse the evidence we can get
a not guilty verdict." 127 R. 544; Gov't C.A. Br. 74. Arias also
charged that defense counsel and their clients had "created * * *
lies" in the present case, and he criticized the ethics of defense
attorneys generally. 127 R. 544; 90-1252 Pet. 19-20 nn.2-3.
The district court twice admonished Arias for giving unresponsive
answers (127 R. 545, 553) and then instructed the jury (127 R. 556)
that
(t)he integrity of the defense lawyers in this case has not been
challenged in any way. These attorneys were not present in the
first case and Mr. Arias' volunteered remarks directed to these
attorneys should be disregarded by you entirely. Mr. Arias,
please do not make remarks about these attorneys and answer only
the question that they present to you and we'll move on much
quicker. Do you understand?
c. After the first day of the jury's deliberations, the foreman
checked out a library book entitled What You Need to Know for Jury
Duty. The foreman read the book in its entirety and was particularly
interested in a chapter suggesting methods for organizing the jurors
during the deliberative process. The next day, following some of
those suggestions, the foreman held an election to fill the offices of
jury secretary, manager of the evidence, and ballot taker. About a
week later, the foreman brought the book into the jury room and showed
some of his colleagues a page from the book that outlined the
organizational steps he was following. Thereafter the book remained
in a drawer for the foreman's occasional reference. No other juror
read it. 90-1252 Pet. App. A37-A39.
3. The court of appeals affirmed petitioners' convictions. 90-1252
Pet. App. A1-A58. Although the court found the government's
solicitation of Arias's testimony about Aleman's conviction to have
been "patently improper," id. at A22, the court concluded that in "its
proper context * * * this colloquy was not so prejudicial to the
defendant's (sic) interest to require a reversal," ibid., and that the
district court's curative instruction had rendered the jury's exposure
to the fact of Aleman's conviction harmless beyond a reasonable doubt,
id. at A22-A23.
The court also rejected the claim that Arias's criticism of the
defense bar generally and of defense counsel in this case in
particular deprived the defendants of their right to a fair trial.
Although it acknowledged that Arias was a "loose cannon," the court
noted that Arias's comments had been "volleyed during defense
cross-examination" and that the district court had "labored to
restrain" Arias from making unsolicited remarks and had instructed the
jury to disregard his non-responsive answers. 90-1252 Pet. App. A25.
For those reasons, as well as the government's lack of involvement in
the alleged misconduct, the court concluded that Arias's statements
could not have prejudiced the defendants. Id. at A25-A26.
The court also addressed the claim that the jury foreman's
introduction of a book on jury service into the jury room made the
trial unfair. The issue, the court said (90-1252 Pet. App. A41), was
whether the jury's exposure to the extraneous material created a
"reasonable possibility of prejudice." United States v. Rowe, 906 F.2d
654, 656-657 (11th Cir. 1990). Relying on United States v. Bassler
651 F.2d 600, 601-603 (8th Cir. 1981), cert. denied, 454 U.S. 1151
(1982), a "surprisingly similar" case, Pet. App. A44, the court found
that the book was "procedural material" that did not give rise to a
reasonable possibility of prejudice, id. at A45.
The court noted (90-1252 Pet. App. A45-A46) that (1) only the
foreman had read the book, and he found it useful only in providing a
"logical framework" for the jurors' examination of the mass of
evidence, (2) the book itself was "largely innocuous and patently
juvenile," (3) it negative comments about attorneys merely repeated
"existing stereotypes of the (legal) profession," and (4) the comments
applied to all attorneys and were acknowledged by the author to be
unfair. In light of the strength of the government's case, the nature
of the book's content, and the Bassler precedent, the court concluded
(id at A46-A47) that the district court had not abused its discretion
when it determined that the jury's exposure to the book was harmless
beyond a reasonable doubt. The court also concluded that the jury's
exposure to the book did not render improper the district court's
standard version of the "Allen" charge. See Allen v. United States,
164 U.S. 492 (1896).
ARGUMENT
1. Petitioners contend (90-1252 Pet. 23-43; 90-7501 Pet 9-20) that
the court of appeals failed to engage in a proper harmless error
analysis because it did not review the whole record and did not
determine that the evidence of petitioners' guilt was overwhelming.
This contention is refuted by the opinion of the court of appeals
which shows plainly that the court examined the record as a whole,
90-1252 Pet. App. A23, A45, and assessed the strength of the
government's case. Id. at A46-A47.
More specifically, petitioners argue (90-1252 Pet. 32-35; 90-7501
Pet. 13-16) that they were gravely prejudiced by Arias's testimony
about co-defendant Aleman's conviction. The court of appeals,
however, correctly concluded that the Arias testimony was not
prejudicial to petitioners. That testimony, which consisted of a
single, three-word sentence, came out during an extended and combative
cross-examination of Arias by defense counsel. Any risk of
significant prejudice caused by that brief remark was cured by the
trial court's instruction to the jury to disregard it. See United
States v. Nickerson, 669 F.2d 1016, 1020 (5th Cir. 1982). Moreover,
the case against petitioners was quite strong; four police officer
co-conspirators and seven civilian co-conspirators directly implicated
petitioner in the charged offenses.
With respect to Arias's disparaging remarks about defense counsel,
petitioners argue (see 90-1252 Pet. 36-39; 90-7501 Pet. 16-18) that
the district court's cautionary instructions did not cure the
prejudice they suffered because (1) Arias had suggested that the
defense attorneys at petitioners' trial were trying to mislead the
jury, (2) Arias had further suggested that the jurors in the first
"Miami River Cops" trial had been misled by defense counsel, and (3)
Arias's negative comments about defense counsel were reinforced by
statements in the book on jury service that the jury foreman had
brought into the jury room.
The court of appeals correctly held that Arias' remarks did not
prejudice petitioners. Like Arias's testimony about Aleman's
conviction, those remarks were elicited during defense counsel's
contentious cross-examination of Arias. The allegedly harmful remarks
were isolated incidents in a complex, two-month trial in which 11
co-conspirators directly implicated petitioners in the charged
offense. The district court directed the jury to disregard Arias's
remarks entirely, and jurors are presumed to follow instructions. See
Richardson v. Marsh, 481 U.S. 200 206 (1987). In addition, Arias
himself was a convicted drug trafficker. As a result, his opinion
with respect to the ethics of defense attorneys was not apt to have
had much impact on the jury.
There is nothing surprising about the court of appeals' conclusion
in this regard. Many courts have failed to find prejudicial error
even when trial judges and prosecutors, let alone convicted drug
dealers, have criticized or disparaged defense counsel. E.g., United
States v. Williams, 809 F.2d 1072, 1088-1089 & n.15 (5th Cir.) (court
commented that "(s)ometimes the tactics of lawyers is to throw a smoke
screen"), cert. denied, 484 U.S. 987 (1987); United States v. Porter,
441 F.2d 1204, 1214-1215 & n.4 (8th Cir.) (court admonished defense
counsel for "blowing smoke rings") cert. denied, 404 U.S. 911 (1971);
United States v. Sblendorio, 830 F.2d 1382, 1395 (7th Cir. 1987)
(prosecutor describes defense as "phony," "bogus," and "manufactured,"
and tells jury it has been misled by defense lawyers), cert. denied,
484 U.S. 1068 (1988). Comments by a trial participant, even if
improper, are likely to be viewed by the jury as reflective of his
position in the litigation, aligned with one side or the other. For
that reason, such comments are seldom likely to be prejudicial, and,
when made by a witness, may even tend to suggest bias on the part of
the witness that would impair his credibility in the eyes of the jury.
2. Petitioners contend (90-1252 Pet. 39-43; 90-7501 Pet. 18-20)
that the jury foreman's introduction of a book on jury service into
thejury room was prejudicial. They point out that the book contains
references to the "potential disgrace of a hung jury" and supports
compromise verdicts that acquit defendants on some counts and convict
them on others. They note that the foreman was exposed to that
material, and other jurors may have been exposed to it as well. This
fact-bound contention does not warrant further review.
Pursuant to Fed. R. Evid. 606(b), /1/ the district court questioned
the jury foreman, who had brought the book into the jury room. /2/
The foreman testified unequivocally that, although he had read the
entire book, he made no use of anything from the book except the
information in one chapter about how to organize the jury for the
purpose of discussing the evidence. 161 R. 2-5. The foreman said
repeatedly that no other juror had read the book and that only two or
three other jurors even knew that the book was in the jury room. Id.
at 5, 6, 16, 17, 27. He had brought the book into the jury room
during the second week of deliberations, he said, and had kept it in a
drawer in a table in the room. Id. at 11-13. The foreman testified
that there was no discussion of any matter mentioned in the book
including legal definitions, in part because every juror had a copy of
the indictment and the court's instructions. Id. at 5-6, 27.
In these circumsances, the district court's determination of lack
of prejudice, based in part on its observation of the foreman's
demeanor, is entitled to great deference. See United States v. Key,
859 F.2d 1257, 1264 (7th Cir. 1988); United States v. Bagnariol, 665
F.2d 877, 885 (9th Cir. 1981), cert. denied, 456 U.S. 962 (1982). The
court of appeals therefore correctly concluded that the district court
did not abuse its discretion when it denied petitioners' motion for a
new trial. The limited, organizational use to which the book was put,
the fact that it merely repeated common, albeit unflattering,
stereotypes about lawyers, and the strength of the government' case
against petitioners made it highly unlikely that the book affected the
jury's verdict. See United States v. Bassler, 651 F.2d at 602-603 (no
reasonable possibility of prejudice where juror took procedural notes
from a book on jury duty and used them in an effort to develop an
orderly method for jury discussions); United States v. Bagnariol, 665
F.2d at 887 ("Reviewing courts will not distrub jury verdicts on
appeal when extraneous information relates only to issues not material
to the guilt or innocence of the defendant."); cf. United States v.
Savage, 701 F.2d 867, 870-871 (11th Cir. 1983) (no reasonable
possibility of prejudice despite presence of antimarijuana magazine in
the jury room during trial for possession of marijuana with intent to
distribute).
3. Petitioners argue (90-1252 Pet. 43-46; 90-7501 Pet. 20-22) that
there should be a per se rule that "constitutional" error "can never
be deemed harmless where the jury deadlocked during its deliberations"
and was given an Allen charge. /3/ Regardless of the strength of the
case against the defendant, the gravity of the error committed, and
the effect of any curing instructions or other mitigating steps
ordered by the trial judge, petitioners contend that the fact that the
jury in this case was deadlocked and given an Allen charge precludes a
finding that the error was harmless.
Harmless error analysis requires a fact-specific inquiry into the
circumstances of a particular case and is thus not amenable to a broad
per se rule like that advocated by petitioners. See Kotteakos v.
United States, 328 U.S. 750, 762 (1946) (harmless error analysis "in
each case must be influenced by conviction resulting from examination
of the proceedings in their entirety") (emphasis added); see also
Johnson v. United States, 318 U.S. 189, 202 (1943) (Frankfurter, J.,
concurring). Absent a review of the entire record, a reviewing court
cannot know whether a temporary jury deadlock is the result of genuine
division over whether the prosecution has proved its case or the
sympathies of a single juror who was nonetheless convinced of the
defendant's guilt. /4/ Thus, although the facts that a jury was
deadlocked and an Allen charge given may be of relevance in the
inquiry, those facts alone are not dispositive.
The only cases cited by petitioners (90-1252 Pet. 44-45; 90-7501
Pet. 20-21) in support of their suggested per se rule are those in
which as this Court has recently explained, "structural defects in the
constitution of the trial mechanism" -- such as denial of the right to
counsel to defendant or the financial interest of the judge in the
outcome of the case -- required per se reversal. Arizona v.
Fulminante, No. 89-839 (Mar. 26, 1991) (opinion of Rehnquist, C.J., at
8). Those errors are subject to automatic reversal because of the
difficulty of determining whether the defendants have been prejudiced.
See Tumey v. Ohio, 273 U.S. 510, 532 (1927). The errors of which
petitioners complain are instead trial errors for which an assessment
of prejudice is possible. Thus, they are errors to which the harmless
error rule applies. See Fulminante, opinion of Rehnquist, C.J., at
8-9. For that reason, the cases cited by petitioers do no support
adoption of the proposed per se rule.
CONCLUSION
The petitions for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
ROBERT S. MUELLER, III
Assistant Attorney General
THOMAS M. GANNON
J. DOUGLAS WILSON
Attorneys
APRIL 1991
/1/ In relevant part, Fed. R. Evid. 606(b) provides that "a juror
may testify on the question wheether extraneous prejudicial
information was improperly brought to the jury's attention."
/2/ Defense counsel became aware of the introduction of this
extrinsic material when, after the discharge of the jury, the foreman
gave an interview to the media. Gov't C.A. Br. 54.
/3/ Although petitoners would apparently apply the proposed rule
only to "constitutional" error, the errors alleged in this case -- the
mention of a co-defendant's conviction, a witness's disparagement of
defense lawyers, and the presence of the book in the jury room -- do
not appear to have violated any specific constitutional provision.
Petitioners each assert that, at least as to the testimony concerning
conviction of a co-defendant, the error "so threatens to undermine the
impart(iality) of a jury as to deny Petitioner his Fifth Amendment
right to a fair trial." 90-1252 Pet. 31 n.4; see 90-7501 Pet. 13 n.3.
Insofar as petitioners are asserting that the errors rendered their
trial fundamentally unfair, in violation of the Fifth Amendment, that
assertion could be made about virtually any trial error. There is no
reason to doubt the court of appeals' conclusion that the errors of
which they complain had no such effect.
/4/ Cf. United States v. Powell, 469 U.S. 57, 63 (1984)
(inconsistent verdicts can rest on something other than the jury's
assessment of the defendant's guilt).